It is typically Bowling Green State University, not an individual employee that is named as the defendant in a lawsuit involving University activity. On rare occasions, individual employees are named as defendants in their official capacity (e.g., Dr. Jane Doe, in their official capacity as a President). In these instances, the lawsuit is actually against Bowling Green State University and the University will automatically defend the lawsuit and pay any damages that may be awarded.
In some cases, however, an attempt is made to sue an employee in their individual capacity (e.g., Dr. Jane Doe, individually). In these cases, the person bringing the lawsuit is seeking money damages directly from the individual. Ohio law provides significant protection against individual employee liability and generally shields employees from individual liability. Employees have immunity for claims brought under Ohio law and are entitled to indemnification for claims brought under federal or other law.
This report is intended to serve as an overview of the very limited circumstances under which employees of Bowling Green State University may be sued personally for money damages. We are happy to answer any questions you may have regarding individual liability in general.
Immunity for Claims Arising Under Ohio Law
Under Ohio law, each employee is immune from individual liability for acts taken in the scope of their responsibilities as an employee. There is no immunity for acts taken by an employee which are manifestly outside the scope of employee's responsibilities or for acts that are taken with malicious purpose, in bad faith, or in a wanton or reckless manner.
In order to sue an employee in their individual capacity under Ohio law, the lawsuit must allege that the employee acted manifestly outside the scope of employment responsibilities, or with malicious purpose, in bad faith, or in a wanton or reckless manner. In such cases, the employee is entitled to a hearing before the Ohio Court of Claims. The Ohio Court of Claims will grant the employee immunity and order the claims dismissed unless the Court determines that employee was, in fact, acting manifestly outside the scope of their employment responsibilities or with a malicious purpose, in bad faith, or in a reckless or wanton manner.
In two very limited circumstances, Ohio law will not prevent an employee from being sued in their individual capacity.
First, immunity is not provided for civil actions that arise out of the operation of a motor vehicle. Thus, an individual employee is not immune from claims that arise out of an automobile accident. However, if the accident occurs while the employee is engaged in the performance of employment responsibilities, the claim must first be brought against Bowling Green State University in the Ohio Court of Claims. Only if the Ohio Court of Claims determines that Bowling Green State University is not liable may a lawsuit then be brought against an individual employee.
Second, immunity will not be provided in civil actions in which the State of Ohio is the party bringing the lawsuit against the employee. In exceptional circumstances, the State of Ohio may seek to recover money personally from an employee. These circumstances generally arise under laws that impose personal liability for financial misconduct. For example, if an employee illegally expends public funds, fails to collect money due, fails to account for public funds or misappropriates or converts public money for their own use, the State may seek reimbursement. The law also imposes personal liability on employees who, without authority, enter into contracts to pay money on behalf of the University.
Indemnification for Claims Under Federal or Other Law
If an employee is sued in their individual capacity on a claim arising under federal law, the law of another state, or of a foreign jurisdiction, the employee is generally entitled to have the University provide legal counsel and pay any judgment or settlement of the claim up to one million dollars.
The Ohio Attorney General’s Office is responsible for determining whether an employee is entitled to legal counsel to defend the suit. Legal counsel will not be provided if the employee was acting manifestly outside their employment responsibilities, or with malicious purpose, in bad faith, or in a wanton or reckless manner. If the Ohio Attorney General’s Office determines that legal counsel should not be provided, the employee is entitled to challenge that determination in the Ohio Court of Claims.
Indemnification will not be provided:
- If the University's insurance policy will pay the liability
- If the employee was acting manifestly outside the scope of their employment responsibilities, or with malicious purpose, in bad faith, or in a wanton or reckless manner
- Punitive damages, unless the employee was not acting as described in No. 2 above, in which case punitive damages may be indemnified
- To pay any portion of a settlement or consent judgment that the Attorney General or University determines is unreasonable
The University, though the Office of General Counsel, will conduct an investigation to determine whether the employee should be indemnified. If the investigation determines that the employee was not acting manifestly outside the scope of their employment responsibilities, or with malicious purpose, in bad faith, or in a wanton or reckless manner, indemnification will be recommended. Bowling Green State University’s determination is subject to the approval of the Ohio Attorney General’s Office. An employee is entitled to challenge any decision not to provide indemnification in the Ohio Court of Claims. The Court of Claims will then determine whether indemnification should be provided.
In addition to the immunity and indemnification provided by law, Bowling Green State University also maintains Educators Legal Liability and General Liability insurance policies. These policies provide for both legal defense and payment of damages and may provide coverage in circumstances where an employee might not be entitled to immunity or indemnification. Any questions regarding actual policy coverage must be determined on a case-by-case basis.
By virtue of the laws relating to immunity and indemnification, employees generally have no individual liability except in those circumstances where the employee was acting manifestly outside the scope of their employment responsibilities or with malicious purpose, in bad faith, or in a wanton or reckless manner. Bowling Green State University also maintains liability insurance which may provide additional protection.
NOTE: This Report is for informational purposes only. Any question regarding indemnity or immunity must be determined on a case-by-case basis. Contact the Office of General Counsel if you receive notice of a potential legal claim for acts related to your employment with Bowling Green State University.